Ariel Ezrachi (Oxford University) and The Hub’s Vicky Robertson have just published their paper entitled “Can competition law save democracy? Reflections on democracy’s tech-driven decline and how to stop it” in the Journal of Antitrust Enforcement. The paper explores the ways in which the digital economy contributes to distortion of information, and the role competition law may play in safeguarding democracy. It does so against the background of digital technologies and platforms that have brought a much-needed plurality to communications and the press, but that have also opened the door to increased manipulation, misinformation, and distortion in the marketplace of ideas. The paper is available in open access here.
The Twin Transition and Competition Law
In the new Research Handbook on Sustainability and Competition Law, edited by Julian Nowag, Klaudia Majcher and Vicky Robertson contributed a chapter on competition law’s role in the twin digital and green transition. They discuss how digital and green competition law might interact to achieve the EU’s ambitious economic and societal transformation, while also highlighting the limits of coherence among the two. The chapter is available in open access here.
Two Concepts of “Undertaking”
There are two different notions of “undertaking” in competition law, argues our former Visiting Research Fellow Eva Fischer: One is the undertaking in the sense of Articles 101 and 102 TFEU, which is also the addressee of competition law sanctions. The other one, according to Groupe Gascogne (C-58/12 P), is used to determine the upper limit for fines based on Article 23(2) of Regulation 1/2003. In its recent judgment Deutsche Wohnen (C-807/21), the CJEU wrongly assumed that the concept of the economic entity, as derived from Articles 101 and 102 TFEU, should be applied to determine the fine under Article 83 GDPR. This calls for a clarification: The concept of the economic entity as it was developed in the aftermath of Sumal (C-882/19) should be limited to determining the addressee of the obligations imposed by Articles 101 and 102 TFEU. Applying the economic entity doctrine to determine a price cap under the GDPR or competition law severely limits the preventive effect of fines. Eva Fischer just published her findings, for which she conducted research during her stay at The Competition Law Hub and which she discussed in our Jour fixe in January 2024, in the German Zeitschrift für die gesamte Privatrechtswissenschaft (ZfPW 2024, pages 306-322).
New DMA Brochure
Vicky Robertson and Alexandre de Streel (Université de Namur) contributed to a new brochure on the Digital Markets Act (DMA) aimed at tech challengers (“business users”) and issued by the Belgian Competition Authority on the occasion of the ECN DMA conference in Amsterdam on 24 June 2024. The brochure aims to highlight the opportunities in digital markets that the DMA opens up, and how digital businesses could make use of them. The draft version is now open for consultation and available here.
Superleague – Breaking Up Monopolies?
In his recent article in the Austrian Law Journal, Fabian Ziermann and his co-authors Dwayne Bach and Patrick Petschinka discuss whether the Superleague decision could lead to a de facto divestiture of monopolies, in the sense that monopolists would have to divest control rather than assets. This follows from two main pillars. First, the CJEU lowered the bar for a by object infringement under Art. 101 TFEU in Royal Antwerp, with Superleague holding that the Meca Medina exception does not apply to by object infringements, significantly limiting the type of conduct that can be exempted. Second, in the context of Art. 102 TFEU, Superleague introduced obligations similar to those of the Digital Markets Act (DMA) on dominant undertakings that have the ability to regulate markets or market entry. Consequently, under Superleague any dominant undertaking may be subject to DMA-like criteria that limit the control it can exercise over markets.
The open access article is available here (in German) and here (in English).
The Economic Driver of Gaming Ecosystems
The first part of Fabian Ziermann’s three-part article on the nature of eSports and gaming ecosystems in SpoPrax, a German (e)Sports law journal, outlines the role of network effects and orchestration. Fabian discusses the evolution of gaming from hardware-centric to software-centric ecosystems, the intricacies of gaining and maintaining market power, and the economic cost thereof. The three-part series aims to highlight issues of economic fairness for non-publisher stakeholders. It can be accessed here.
Call for Papers: The New Market Definition Notice
The Journal of Antitrust Enforcement (Oxford University Press) is launching a call for papers for a Special Issue on the implications of the new Market Definition Notice (EU 2024) and the Merger Guidelines (US 2023), guest edited by Magali Eben and Vicky Robertson.
Topics include new approaches to market definition and how to rely on it, against the background of the recent Market Definition Notice and Merger Guidelines. Submissions in law as well as in economics are welcome!
Submit your abstracts with ideas for papers until 17 June 2024.
At The Competition Law Hub, we will host a workshop to discuss the draft papers on 20 November 2024 – stay tuned!
Find out more in the pdf below:
Tackling the Entrenchment of Bottleneck Power
In the first part of his recent article in the Austrian Competition Journal, Fabian Ziermann discusses the changing landscape of European merger control. He outlines the evolution of the notion of control, emphasizing that uncontrolled acquisitions, i.e., below-the-threshold killer or zombie acquisitions, were never envisaged to be possible by European regulators. The two-part article examines whether Continental Can and Towercast represent an attempt by the CJEU to limit ex post merger control, whether Towercast is an ultra vires restriction on the application of Art. 102 TFEU, or a de facto acquisition ban for bottleneck holders. The article is available here.
Competition Law in Space?
As part of the EU Law Live symposium on “Competition Law and Regulation”, Fabian Ziermann discussed the relevance of competition law in space regulation. He outlined the changing landscape from public to private space exploration and the complexities of delineating orbital geographic markets in space. Moreover, he also touched on the race to open up new industries in space, such as the colonization of Mars. Against this background, he raised the idea that, given the magnitude of the task, competition policy might be better applied by designating a temporary planetary champion. His contribution can be accessed here.
Can Competition Law Save Democracy?
In a recent working paper, Ariel Ezrachi (Oxford University) and The Hub’s Vicky Robertson ponder democracy’s tech-driven decline and competition law’s role in stopping it. Democratic governance is anchored in the principle that power is vested in the people, and that people can choose wisely. Citizens must benefit from an undistorted flow of relevant information that allows them to exercise their autonomous choices as citizens and voters. Despite the many benefits that the digital era has brought to users, it has also opened the door to increased manipulation, misinformation, and distortions in the marketplace of ideas. Can competition law be part of the solution to these issues? Find out by reading their working paper available on SSRN.
The Future of Competition Law Enforcement
Against the background of their recent DataComp project, Vicky Robertson and Jürgen Fleiß published an editorial in GRURInt in which they reflect on the influence of digitalization on the substantive assessment of competition law and, in particular, on the enforcement of competition law. They highlight what it takes to make full use of computational antitrust in the public enforcement of competition law. You can access the editorial here.
Kodex Competition Law
The third edition of the legal materials Kodex Competition Law brings together all relevant legal materials of competition law in one handy book and can be used by practitioners, academics and students. For the new edition, Vicky Robertson compiled all major updates, including the new Market Definition Notice (2024), the new Horizontal Co-operation Guidelines (2023), the new US Merger Guidelines (2023) and the Digital Markets Act (2022). Updates to the block exemption regulations are included as well. Published by LexisNexis, you can obtain your copy here.
Pictured with Vicky Robertson is Judith Feldner (partner at E+H) holding the legal materials on diversity and inclusion that she just compiled with Jana Eichmayer, also published by LexisNexis and available here.
Photo credentials: Leadersnet & Alexander Felten